The Tail Wagging the Dog

As I recently read an article that discussed the alleged airworthiness directive (AD) noncompliance issues that several airlines faced this spring, it boiled up in me again — the frustration about what the FAA/industry relationship has evolved into since I have been in this business.

I remember the first FAA inspector I ever met when I first started working on aircraft more than 20 years ago. He came to our noncertificated repair facility and asked to take a look around. We spent the day looking and finding areas that needed to be improved. Although some of the conversation was a bit tense (at least for me) in the end, this FAA safety inspector graciously explained what he thought I needed to do differently and was on his way. I don’t recall that there was anything critically wrong with what we were doing but I know that he left me feeling less intimidated by the thought of an inspector coming to see us. I think he was sincerely trying to help.

Not long after that I moved my family and went to work for a certificated repair station. I didn’t know it at the time but I had sort of a knack for understanding the regulations and how they all tied together. Because of that “knack” I was very interested in the workings of the inspection office and the quality control procedures of the repair station. Thus I quickly landed in the inspection office, reviewing logbooks and repair station paperwork as well as helping to deal with the FAA when they would visit. The FAA Flight Standards District Office (FSDO) was directly next door to our facility and so we worked closely with the FAA almost daily. Working with the FAA from within a repair station was definitely more structured than the noncertificated facility environment that I came from but even so, the relationship with the FAA was one of mutual respect and cooperation.

Turning point
Looking back I think the turning point was the tragic event when the ValuJet DC-9 crashed into the Florida Everglades on May 11, 1996, killing all 105 passengers and a flight crew of five. The cause of the crash was a fire that broke out in the baggage compartment of the aircraft. The cause of the fire was traced to oxygen generators that were being transported in the baggage compartment that caught fire. As it turned out, a certificated repair agency that was contracted to perform maintenance for the airline was the focus of a detailed and revealing investigation. Without a doubt, the event was tragic and could have been prevented.

I see this accident as a turning point because after the investigation revealed the inadequacies of the targeted repair station, the FAA, due to public/congressional pressure, began to change their approach with all repair stations. Since the FAA provides oversight to industry, the public perception was that the FAA could have prevented the tragic event and therefore should be doing something to ensure it didn’t happen again. (A perception that I think is false, but powerful nonetheless.) They seemed to step up their oversight efforts without any clear direction of exactly what to do differently other than just spend more time looking for regulator violations.

I believe that the issues within that particular repair station were not a reflection of the state of the industry, but rather a unique, isolated situation created by the poor oversight and poor practices of the subject repair station.

The framework for the relationship that industry has with the FAA is quite lopsided. The FAA holds a power position over industry, similar to the power that law enforcement people have over society. It seems like the FAA safety inspectors began to feel more obligated to find violations and file enforcement actions than to work with the industry to make improvements.

Letter of Investigation
This is about the time that I first found out about a Letter of Investigation, or what I call “fishing letters.” They existed before but because the filing of violations enables the use of “fishing letters” and violation filings were on the rise, they were being used more.

When the FAA has completed an audit of your facility and it has found something that it believes is a violation, it will likely open an enforcement investigation report (EIR) file and send you what I call a “fishing letter.” “FAA Order 2150.3B FAA Compliance and Enforcement Program” is the guidance FAA safety inspectors use to find example letters and enforcement policies. A “fishing letter” comes from the Order and includes the following paragraph:

“This is to inform you that the FAA is investigating this matter. We wish to offer you an opportunity to discuss the incident in person or submit a written statement within 10 days following receipt of this letter.

Your statement should contain all pertinent facts and any mitigating circumstances you believe may have a bearing on the incident. If we do not hear from you within the specified time, we will process this matter without the benefit of your statement.”

I picked the term “fishing letter” because of the natural way that the verbiage in this paragraph compels the unknowing certificate holder to write an apology letter, resulting in an admission of any and all of the allegations. Up to this point any findings are simply that — findings. They have not been proven to be violations. In my experience, it is just as likely that the FAA has misinterpreted the findings and there is not a violation. The problem is that if the certificate holder “bites,” he or she will, without further investigation, provide the FAA with everything that is needed to successfully process the violation. The FAA will not read you your Miranda warning, but “everything you say can and will be used against you” in the course of the FAA’s investigation.

When I became aware of the fact that all FAA inspectors are obliged to file a violation when they suspect an infraction, and that these letters were being sent out, I began to see the FAA a little differently.
I have since been a proponent of knowledge: Every certificate holder should become an expert at the rules and regulations that they are to operate under and know, without a doubt, how they are complying with each and every applicable rule. Then, if there is ever an investigation, they will know immediately if the findings are valid or not and will be able to respond intelligently to a letter of investigation.

A side note, if you receive a letter of investigation and don’t know if the allegations are legitimate, ask the FAA for more time to look into the matter. Don’t send an apology letter; it will only seal your fate. Please refer to AMT January 2007, Around the Hangar article “Hello, I’m from the FAA” at www.amtonline.com to find a detailed explanation of the FAA Compliance and Enforcement Program.

Letter vs. spirit of regulations
My focus is primarily on the business aviation community, but what prompted this article is what happened to the airline industry this spring. It boiled down to the difference between, “the letter of the regulation” vs. “the spirit of the regulation.” It seems the purpose of regulations is to maintain the safest possible aircraft and flights. To do so, the FAA would be wise to file violations for infractions to safety, rather than play the game of interpretation in order to try to make a regulatory infraction stick. Two cases in point:

Southwest Airlines’ airworthiness directive compliance issue was made very public by Congressional involvement. I agree wholeheartedly that the actions taken by the FAA inspector to “approve” flight without compliance with applicable ADs were a result of an inappropriate relationship between the airline and the specific FAA inspector assigned to the airline and should never have happened. The event prompted additional audits of 10 other airlines to verify AD compliance.

The FAA auditors felt compelled to make an example of someone, in my opinion, to show that they are taking action. In this case American Airlines was one such example. As a result of the audit, American Airlines grounded several aircraft to make adjustments to previous compliance with airworthiness directives that were not done exactly like the AD specified (as interpreted by the FAA auditor). American Airlines had assisted Boeing in the authoring of the service bulletin that the AD covered.

Operational control
Through standard FAA audits in the business aviation charter community in 2005 and 2006, the FAA legitimately found a few operators who were not able to demonstrate that they had “Operational Control” of all of their aircraft, a term found within 14 CFR Part 135 (among other regulations) that means basically what it says. The air carrier must have control of the operation.

In these few cases, the air carriers were contracting other aircraft to handle flights for them and were not meeting all of the required measures to show that they indeed had operational control. As it turned out, the FAA took the position that the exact definition of operational control may not have been clearly communicated, and working with industry, it provided a method and timeline for the charter industry to meet the now clearly defined requirements for operational control.

Things seemed to be going well and organizations were working with their local FAA safety inspectors to make the adjustments, if needed, to their operations and procedures.

Then out of the blue, the FAA took out its big stick “certificate action” and revoked the air carrier certificate held by AMI Jet Charter/Tag Aviation.

Again, I believe the action taken was an effort to flex the muscle of the FAA in order to scare other operators, and show Congress and the public that they are in charge. In my opinion, certificate action, being the most extreme remedy at the disposal of the FAA, was much more than was necessary. As it turned out, the aircraft were allowed to move to another certificate and some were being operated again within only a few days. If they were really unsafe, how could they be back up and running so quickly under a different certificate?

The solution
It seems ridiculous to try to increase safety by a show of power. The real solution will come when the FAA finds an effective way to train their inspectors to really work with industry, educate industry, and support industry.

In the mean time, don’t sit around waiting for the FAA to come tell you what you should change about your maintenance organization or operation. Most of them don’t know, none of them have your businesses interest in mind, and likely none of them know the processes used within your organization.

Get into the regulations. Get to where you or someone within your organization understands the meaning and purpose of the rules that govern your business, and be proactive with the FAA. You need to be able to tell the FAA what you are going to do and how it meets the requirements of the regulations.

We are in a regulated industry. In addition to knowing how to handle employee issues, or marketing concerns, or accounting methods, our businesses have also got to focus on compliance in a very on-purpose way.

Joe Hertzler is the CEO and co-founder of Avtrak Inc., provider of the industry’s first Internet-based and compliance-focused maintenance tracking service — Avtrak GlobalNet. Avtrak has earned a solid reputation for having the most comprehensive and easy-to-use compliance management system and service in the industry. Avtrak’s GlobalNet technology is the engine behind Gulfstream CMP.net and Sikorsky HelotracII. GlobalNet is the system of choice for many operators of more than 140 models including Bombardier, Hawker/Beechcraft, and Dassault Falcon aircraft.